Susan Aslan on the use of preliminary hearings in libel actions. Susan Aslan is a solicitor at DJ Freeman.

Libel trials are unusual in that they are one of the few civil hearings in which a jury is involved. The libel jury decides not only liability but also the meaning of the words complained of and, if it finds for the plaintiff, it awards damages.

The jury does not have to adopt either the plaintiff's or the defendant's interpretation of the words published or broadcast. It can substitute its own interpretation.

In the recent case of Marks & Spencer v Granada Television, Marks & Spencer sued over a World in Action programme which made allegations about the company's suppliers.

The plaintiff pleaded that the programme meant that it knew about the bad practice, but the defendant pleaded a lesser meaning and did not attempt to defend the plaintiff's meaning.

The trial judge took the highly unusual course of directing that there should be a preliminary trial before the jury on meaning alone. No evidence was to be led and the jury was simply to watch the programme and hear the counsel's submissions about the meaning of the programme.

Although Mr Justice Popplewell left it open to the jury to substitute its own meaning for the programme, he made it clear in his direction that he thought that there was no "half -way house" between the plaintiff and the defendant meaning.

On the face of it, the jury drafted a "half-way house" meaning in respect of one of the allegations against Marks & Spencer. This presented problems because the jury's meaning was not clear. Granada applied to the judge to ask the jury further questions to clarify the matter. The judge declined to do this. He granted leave for Granada to appeal to the Court of Appeal and, in the interim, the case was settled.

Because the jury substituted its own meaning, the Court of Appeal may have faced interpreting the jury's meaning or possibly ordering a retrial which would have increased costs and delayed resolution of the matter.

In the circumstances, despite the apparent attractions of a preliminary trial on meaning, the court may in future draw the conclusion that it is preferable for the jury to consider meaning and evidence at the same time.